Cases

In response to a certified question, the supreme court held that the notice requirement of section 766.316, Florida Statutes, is only satisfied if both the participating physician and the hospitals they work for give notice to the patient. If either fails to provide notice of participation, then the patient has to option to either accept compensation from NICA or file a malpractice action.

A patient filed a medical malpractice suit after sustaining injuries during laser hair removal. The doctor moved to dismiss the complaint on the grounds that the patient had not complied with the pre-suit requirements of medical malpractice act in chapter 766. The trial court denied this motion, finding that the doctor was performing a cosmetic procedure in this instance and not medical treatment. The district court reversed holding that laser hair removal was a medical procedure and noting that a doctor performed the procedure to support this holding.

The patient experienced terrible eye and jaw pain the morning after getting a face lift. She went back to the doctor and continued to treat with him for reoccurring eye and eye lid problems and facial scaring until she commenced a medical malpractice action against him around two years later. The judge granted partial summary judgment to the doctor regarding the eye and eye lid, finding that the statute of limitations had run. The jury then found for the doctor in a trial that dealt only with the scaring. The district court reversed the partial summary judgment pointing out that the doctor had assured the patient of a “slow recovery” while treating her and holding that the concept of estoppel barred the doctor from then using that long period as a sword against the plaintiff.

The plaintiff brought suit against a hospital, claiming that a stocking that was placed on her thigh during a procedure caused blistering and scaring. The claim was accompanied by an affidavit in which a nurse, who was also the plaintiff’s sister and the plaintiff’s attorney’s mother, stated that medical malpractice had occurred. The trial court granted the hospital’s motion to strike the claim based on what it deemed a failure to reasonably investigate the merits of the action. The Court affirmed this ruling on appeal, holding that the nurse’s relationship to the plaintiff and her attorney showed bias. The district court also pointed out that the plaintiff could have easily utilized a medical professional who was not a family member to provide such an affidavit.

The district court affirmed the trial court’s order that the defendant hospital produce records of adverse incidents involving two of its doctors beyond what the plaintiff requested. The hospital argued that it was only required to produce those documents required by section 381.028(7)(b), but the district court held that Article X, section 25 of the Florida Constitution trumped that statute and cast a much wider net of what is producible. The district court also rejected the hospital’s argument that Article X, section 25 was preempted by the federal Health Care Quality Improvement Act of 1986, finding that they did not conflict. The hospital’s argument that Article X, section 25's application in this case violated the Commerce Clause of the U.S. Constitution was also rejected. The district court held that the trial court departed from the essential requirements of the law in forcing the hospital to produce records regarding doctor training when there was no documented adverse incident to which that training related. Finally, the district court held that the trial court committed harmless error in allowing the plaintiff to discover blank applications from the hospital.

A patient suffered a heart attack and died while undergoing a heart transplant, and he alleged in a medical malpractice suit that this resulted from the failure to administer an anti-clotting drug. At the time, a statute in effect stated that a malpractice action may proceed to trial with no limitation on damages if the defendant refuses an offer of arbitration. At trial, the plaintiff won $9.5 million in non-economic damages. However, section 766.18(4) had been adopted after the incident in question in this case occurred. That statute limited non-economic damages to $150,000 per claimant or $300,000 per incident, and the legislature made clear that it was to have retroactive application. The defendant in this case moved to limit economic damages pursuant to this statute, and the trial court granted that motion. The district court reversed holding that the new statute inapplicable. It held that the retroactive application of that statute would affect the patient’s substantive rights, which is prohibited by constitutional due process.

The defense made a motion for a directed verdict after it believed the plaintiff had rested based on the fact that the plaintiff had not served the Department of Financial Services as required by section 768.28(7), Florida Statutes. The plaintiff’s attorney realized that such service had, in fact, not been effectuated and served the department the following morning. The jury then returned
with a verdict for the plaintiff. The district court affirmed this verdict, holding that the record was not clear as to whether the plaintiff had rested before the motion was made. It also noted that, even if the plaintiff had rested, the service was effectuated before the judge ruled on an outstanding evidentiary issue. Thus, the motion would have still be properly denied.

An Administrative Law Judge ruled that the plaintiffs’ child did not qualify for coverage by the Florida Birth-Related Neurological Injury Compensation Association. That law created a no-fault system that compensated families of children born with certain neurological problems outside of the tort system. The plaintiffs’ child was diagnosed with cerebral palsy and other neurological problems after birth, and the plaintiff’s brought suit against the delivering doctor and other defendants. The defendants asked the ALJ to apply the presumption of compensability contained in section 766.309(1)(a), Florida Statutes, but the ALJ ruled that only the claimant him or herself could apply for that presumption. The district court held that the presumption was triggered because the records established that the child suffered a neurological injury falling within the scope of the statutory requirements. It also held that the child did qualify for coverage under NICA, which it noted was intended to reduce malpractice costs for obstetricians. The district court opined that a medical provider could request this presumption since the intent of the law was to protect doctors.

The trial court overruled the hospital’s objection to allowing the plaintiff to discover records of previous adverse medical incidents, and appealed. The hospital argued that the discovered documents included some that were protected by attorney client privilege, and that Article X, section 25 of the Florida Constitution violated Supremacy Clause of the U.S. Constitution. The district court affirmed holding that the attorney-client privilege argument was not ripe because the trial court did not decide the question of whether those documents deserved such protection.
The district court also held that the section of the Florida Constitution in question was not preempted by federal legislation in that it did not conflict with a federal law’s intent to ensure
“effective peer review” in hospitals.

A man died while in the hospital, and his wife brought suit against an anesthesiologist who she alleged failed to take actions that could have prevented her husband’s death. The trial court granted the anesthesiologist’s motion for a directed verdict, finding in part that section 768.13(2) (c)(1) (the “Good Samaritan” Act) applied. At the time of the husband’s death, the anesthesiologist had gone to the emergency room to voluntarily administer an epidural to a woman in labor. The Good Samaritan Act states that a health care practitioner who is “attending to a patient of his or her practice” and who “voluntarily responds” to a person outside of that practice will not be held liable for such treatment. The district court upheld this ruling on appeal. The wife argued that this act should not apply to anesthesiologists since they do not have patients of their own, per se. The district court opined that exclusion of anesthesiologists from the protections afforded by that Act would be arbitrary and held that the Act applied to this situation.

The district court reversed the trial judge’s order granting summary judgment to the medical providers in a medical malpractice case. The plaintiffs were alleging that the providers’ malpractice during the birth of their child led to the child’s death. The medical providers argued that the claim of wrongful death was precluded by the exclusivity of remedies provision of section 766.303(2), Florida Statutes, also known as the Florida Birth-Related Neurological Injury Compensation Plan. There is an exception to this provision for “willful and wanton” conduct on the part of the medical provider. The trial judge ruled that the plaintiffs had waived the willful and wanton argument by not referencing it in their complaint. The district court noted that exclusivity was an affirmative defense and that the plaintiffs did not have to respond to it until the medical providers raised it. Once the medical providers raised this defense in their supplemental answer, the plaintiffs responded with the willful and wanton argument. Thus, the fact that this argument did not appear in the plaintiff’s original complaint was not sufficient grounds for granting summary judgment.

A patient brought suit against two doctors, as well as against their employer and the hospital. The patient was alleging vicarious liability on the part of the employer and the hospital. The hospital sought summary judgment in its favor at trial, pointing to hospital consent forms the patient signed which stated that the doctors were independent contractors. The trial court granted that motion, but the district court reversed holding that this form, in and of itself, was insufficient to disprove an agency relationship between the doctors and the hospital. The district court noted the patient’s testimony that he was in pain and under the influence of prescription drugs when he signed the form in holding that there were genuine issues of material fact regarding the hospital and doctors’ relationship. It also noted that such a form can not disprove an agency relationship if the totality of the circumstances suggest otherwise.

A man and his wife sued a hospital after he suffered a stroke that he alleged could have been prevented by the administering of a certain drug. The hospital moved for a directed verdict, but the trial judge refused to grant one. The district court reversed and held that a directed verdict should have been granted. It held that the plaintiffs failed to prove that the man would more likely than not have benefitted from being administered the drug. The plaintiffs offered testimony from a medical expert at trial who said the drug would have helped the man, but the district court found that it did not prove that the drug made it 51 percent more likely to help him than not.

The district court upheld the trial judge’s ruling that documents detailing complaints of infections and other investigations at the hospital that were created in anticipation of litigation were discoverable. The district court found these documents to be “fact” work product as opposed to “opinion” work product, which placed them within the realm of documents made discoverable by Article X, section 25 of the Florida Constitution. The decision placed an emphasis on the fact that the hospital’s attorney had never reviewed these documents and did not contain any of the attorney’s mental impressions.

The district court affirmed the trial court’s order requiring that the hospital produce records of adverse medical incidents prepared in anticipation of litigation. Despite the common law work product doctrine, the right of access to such documents granted under Article X, section 25 of the Florida Constitution grants patients the right to discover such documents and preempts the work product doctrine.

The district court affirmed the trial court’s denial of a directed verdict for the plaintiff on the issue of whether he sustained an injury in the car crash in question. The plaintiff argued that he was entitled to such a directed verdict because every doctor who testified at trial concluded that he had suffered an injury in the crash. The district court held that the jury is entitled to reject even uncontroverted medical evidence, provided it has a reasonable basis to do so. Lay testimony that conflicts with a doctor’s opinion, which was heard in this case, can provide such a basis.

A mother filed a medical malpractice action against health care providers after her child was born prematurely, suffering permanent physical and mental injuries. The trial court granted the health care providers' motion to dismiss the second amended complaint, which was the third complaint filed in the action. The first two complaints alleged medical malpractice and designated a guardian as the plaintiff. The second amended complaint designated the mother and a trustee as the plaintiffs. The trial court ruled that the second amended complaint did not relate back to the prior complaints, and, thus, the statute of limitations had run on the cause of action. On appeal, the court found that the dismissal was improper because the second amended complaint related back to the time of the filing of the earlier complaints under Fla. R. Civ. P. 1.190(c). Once the mother amended the complaint to eliminate the damages disallowed under a legal theory of wrongful life, the court should have allowed the medical malpractice action under the legal theory of wrongful birth to proceed. At all times the complaints alleged an action for medical malpractice claiming
damages for medical expenses for the care of the child. The mother and the child had an
identity of interest in seeking damages for the child's medical care and the health care
providers failed to show that they would be prejudiced by the change of parties.